Caya Realty, LLC v. Lugowski

CAYA REALTY, LLC v. Joanna LUGOWSKI

No. TTDCV186015406

Superior Court of Connecticut, Judicial District of Tolland, Rockville

October 11, 2018

UNPUBLISHED OPINION

Macierowski J.

I. PROCEDURAL BACKGROUND

The plaintiff, Caya Realty, LLC ("Caya"), commenced this summary process action by serving a notice to quit on the defendant on June 18, 2018 followed by a writ, summons and complaint on July 25, 2018.

Caya obtained title to the subject residential property located at 1394 Tolland Stage Road, Tolland, Connecticut following a lengthy foreclosure action.^[2]

The court will not recite at length the protracted litigation history in the foreclosure action, spanning almost five years, but will take judicial notice thereof. What is important is that the court entered a judgment of foreclosure by sale. Caya was the successful bidder. The committee sale and deed were approved by the court on September 12, 2016. Attorney Johnson’s first attempted appeal was dismissed on June 7, 2017. The deed conveying the property to Caya was released and recorded on April 11, 2018. Caya’s motion for possession was granted and an order of ejectment against Attorney Johnson was issued on June 7, 2018. The defendant in the present action occupied the premises along with Attorney Johnson, but was not a party to the foreclosure. Caya filed this summary process action to obtain possession of the premises from her.

In the present action, Attorney Johnson filed a motion to dismiss on behalf of the defendant alleging lack of subject matter jurisdiction and improper venue. A later filed motion for permission to amend the motion to dismiss sought to add lack of personal jurisdiction, insufficiency of process and insufficiency of service as additional grounds for dismissal.^[3] Caya objected to the motion to amend. Both parties filed briefs, and the matter was heard by the court on September 21, 2018.

II. STANDARD OF REVIEW

"A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005). "Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it." State v. Fuessenich, 50 Conn.App. 187, 192, 717 A.2d 801 (1998), cert. denied, 247 Conn. 956, 723 A.2d 813 (1999). "The motion to dismiss ... admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone." Young v. Chase, 18 Conn.App. 85, 90, 557 A.2d 134, cert. denied, 211 Conn. 807, 559 A.2d 1141 (1989). The complaint is to be construed most favorably to the plaintiff. See Duguay v. Hopkins, 191 Conn. 222, 227, 464 A.2d 45 (1993). "[E]very presumption favoring jurisdiction should be indulged." Lawton v. Weiner, 91 Conn.App. 698, 714, 882 A.2d 151 (2005), cert. denied, 282 Conn. 928, 926 A.2d 669 (2007), quoting New England Pipe Corp. v. Northeast Corridor Foundation, 271 Conn. 329, 335, 857 A.2d 348 (2004).

Having reviewed the file and pleadings, considered the briefs and exhibits and heard the parties, the motion to dismiss is denied.

III. DISCUSSION

i. Superior Court Jurisdiction

The complaint sets forth a summary process claim consistent with General Statutes § § 47a-23 and 47a-23a and over which this court has jurisdiction.^[4] Caya, as the owner holding legal title of the premises, caused a notice to quit possession to be served upon the defendant. A copy of the notice to quit was attached to the complaint. The complaint alleges that "[a]lthough the time to quit has passed, the defendant continues in possession of the premises." The first count alleges that "[w]hile the [d]efendant originally had the right or privilege to occupy the premises, said right or privilege has terminated." The second count alleges that the defendant "never had, nor now has the right to occupy" the premises. Caya asks the court for a judgment of possession.

The defendant argues that this court lacks jurisdiction over Caya’s summary process claim because a title search during the foreclosure action revealed that the estates of Camilla and Francis Johnson include fractional shares in the subject property, and their estates are still in probate. However, this fact does not deprive the court of jurisdiction over this summary process action where Caya holds legal title to the property pursuant to a court approved and recorded deed.^[5]

The defendant’s argument that the Probate Court has primary jurisdiction over any and all claims related to the property, including this summary process claim, merely by virtue of the fact that fractional shares in the property are held by estates in probate is misplaced. "The Probate Court is a court of limited jurisdiction prescribed by statute, and it may exercise only such powers as are necessary to the performance of its duties ... It therefore is incumbent on a party moving to dismiss a complaint on primary jurisdiction grounds to demonstrate that the causes of action contained therein are matters entrusted exclusively to the Probate Court." Geremia v. Geremia, 159 Conn.App. 751, 766-68, 125 A.3d 549 (2015). The Probate Court’s jurisdiction to determine title or rights to property in an estate "is concurrent with the Superior Court and does not affect the power of the Superior Court as a court of general jurisdiction." General Statutes § 45a-98.

The fact that a claim may relate to or impact property of an estate does not deprive the Superior Court of its jurisdiction to hear that claim. See Geremia, supra, 159 Conn.App. 771 (fact that plaintiffs’ claims of conversion and theft related to property in an estate did not deprive the Superior Court of jurisdiction to hear those claims). The Probate Court’s jurisdiction over the estates’ fractional shares in the subject property for the purposes of estate administration does not automatically confer upon such court primary jurisdiction over any and all claims by all parties relating to the property at large. These are separate and distinct legal matters that do not conflict with one another and can run concurrently.^[6]

In the present case, the title holder and record owner of the subject property has brought a summary process action seeking to evict a non-owner occupier of the premises. The sole issue in the present case is, as between Caya and this defendant, who has the superior title and right to possess and occupy the premises. "The ultimate issue in a summary process action is the right to possession." Southland Corporation v. Vernon, 1 Conn.App. 439, 443, 473 A.2d 318 (1984) citing Rosa v. Cristina, 135 Conn. 364, 365, 64 A.2d 680 (1949); Urban v. Prims, 35 Conn.Supp. 233, 236, 406 A.2d 11 (1979). "The principal issue is who has the superior title or possession of the property." Wellner v. Carroll, Superior Court, judicial district of Fairfield, Docket No. SPBR 9407-27339 (Jan. 6, 1995, Tierney, J.).^[7] Accordingly, this court has jurisdiction over such claim.^[8]

ii. Attorney Johnson’s Pending Foreclosure Appeal

The defendant also argues that this court lacks jurisdiction over this summary process matter because there is an appeal pending in the foreclosure action. Attorney Johnson has appealed the foreclosure court’s denial of a motion to reargue a motion to reopen judgment. According to the defendant, Attorney Johnson’s appeal triggers an automatic stay in the foreclosure proceedings which prevents Caya from claiming ownership in this case.

By way of background, the judgment of foreclosure by sale was entered on June 20, 2016. At that time, Attorney Johnson filed a motion to open the judgment which was denied. He appealed the court’s denial of his motion to reargue the motion to open on November 4, 2016. His appeal was dismissed on June 7, 2017.

Since that time, Attorney Johnson has filed numerous motions and objections. In October 2017, he filed another motion to reopen judgment which was denied. He then filed a motion to reargue the motion to reopen. He appealed the denial of that motion on April 9, 2018. As counsel for the defendant in this case, he argues that an automatic appellate stay of the foreclosure judgment should apply, that Caya violated the stay by filing the deed, and that this court lacks jurisdiction over Caya’s summary process claim against this defendant because the "plaintiff’s claim of ownership is stayed pending resolution of the appeal."

This argument appears to be another attempt to re-litigate the foreclosure action in this case. It is important to note that what is under appeal is not the foreclosure judgment entered over two years ago, but a motion to reargue a motion to reopen that judgment.^[9] Judge Farley, in the foreclosure action, issued an order dated May 21, 2018 stating that "there is no stay in effect precluding the enforcement of the original judgment and, therefore, nothing precluding the enforcement of that judgment." Creative Masonry & Chimney, LLC v. Johnson, Superior Court, judicial district of Tolland, Docket No. CV-13-6007464-S (May 21, 2018, Farley, J.) (# 375.10). The order cited Wells Fargo Bank, N.A. v. Owen, 174 Conn.App. 102, 165 A.3d 275 (2017), which held that "[w]hen a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment." Id., 108 quoting Wells Fargo Bank, N.A. v. Ruggiri, 164 Conn.App. 479, 484, 137 A.3d 878 (2016), cert. granted, 327 Conn. 955, 171 A.3d 1051 (2017).^[10]

The court will decline, yet again, the invitation to re-litigate the interests of Attorney Johnson in the foreclosure action in this summary...